ANALYSIS-In US voting-rights case, liberal justices pitch to Kennedy

February 28, 2013|Reuters

By Joan Biskupic

WASHINGTON, Feb 28 (Reuters) - Barely a minute into a U.S.Supreme Court hearing, liberal justices began a strategicbarrage of questions that came down to this: Why should atime-honored plank of the 1965 Voting Rights Act be invalidatedin a case from Alabama with its history of racialdiscrimination?

What followed constituted a classic example of how justicescan try to use oral arguments to dramatic effect and influence aswing vote justice. Key players were Elena Kagan and SoniaSotomayor, appointees of President Barack Obama and the newestmembers of the bench. The likely target of their remarks:Anthony Kennedy, a conservative who is often the decisive fifthvote on racial dilemmas.

"Think about this state that you're representing," ElenaKagan told the lawyer arguing against the law on Wednesday."It's about a quarter black, but Alabama has no black statewideelected officials."

Focusing on Shelby County, Alabama, the southern locale thatbrought the case, Sotomayor asked, "Why would we vote in favorof a county whose record is the epitome of what caused thepassage of this law to start with?"

Those liberals were addressing lawyer Bert Rein, but theircomments seemed aimed more at Kennedy, often the swing vote onthe nine-member court. While appearing overall open to ShelbyCounty's claims, Kennedy quickly picked up on their line ofinquiry, asking Rein how a county with a record of bias would be"injured" by the 1965 provision that was intended to preventdiscrimination.

One of the most closely watched disputes of the term, thecase centers on the civil rights-era law that broadly prohibitedpoll taxes, literacy tests and other measures that preventedblacks from voting. In the 1960s, such laws existed throughoutthe country but were more prevalent in the South with its legacyof slavery. Specifically at issue is a provision - designed tobe temporary and that Congress has continued to renew - thatrequires certain states, mainly in the South, to show that anyproposed election-law change does not discriminate againstAfrican-American, Latino or other minority voters.

The Shelby County challengers say the kind of systematicobstruction that once warranted treating the South differentlyis over and the screening provision should be struck down.

Convincing Kennedy of lingering problems in Alabama may beliberals' best hope of stopping the conservative majority frominvalidating what's known as Section 5 of the Voting Rights Act.

The Obama administration, backed by civil rights advocates,says the provision is still needed to deter voterdiscrimination. Kennedy's comments during the 75-minute sessionsuggested he was sympathetic to Shelby County's claim that inmodern times different states should not be treated differently.Yet the liberals' assertions clearly gave him some pause.

The onslaught, particularly from Sotomayor, the firstHispanic justice, and Kagan, known for asking piercingquestions, served as a reminder of how the justices often useoral arguments to try to make their cases. These sessions, whichlet dueling attorneys present their claims at the lectern, givethe justices their first chance to lay the groundwork for theirultimate discussion and vote on a case. The nine justices aredue to meet in private on Friday to discuss the merits of thecase. An opinion can take months to write, and the decision isnot likely to be handed down until June.

LAW'S RELEVANCE ENDURES

Voting rights remain a prominent issue. During the 2012presidential election campaign, judges nationwide heardchallenges to new voter identification laws and redrawn votingdistricts. The most restrictive moves, including those fromplaces covered by the screening provision in Section 5, ended upbeing blocked before the November elections.

In Shelby County over the years, Sotomayor asserted, Section5 had prevented "240 discriminatory voting laws" from takingeffect. In a 2008 incident, the city of Calera in Shelby Countyput in place a redistricting plan that led the one AfricanAmerican on the city council to lose his seat. After the JusticeDepartment forced Calera to redraw the map, the council memberregained his seat.

Rein did not challenge Sotomayor's numbers, but he saidblack-voter registration and turnout in Alabama were "veryhigh." He said evidence on the ground was irrelevant whenofficials are lodging a broad-based challenge to a law. His mainargument was that the criteria by which states fall underSection 5 are outdated. The formula can be traced to electoralpractices in the late 1960s and '70s. The nine fully coveredstates are Alabama, Alaska, Arizona, Georgia, Louisiana,Mississippi, South Carolina, Texas and Virginia.

U.S. Solicitor General Donald Verrilli argued that Congresscompiled a sufficient record to demonstrate that the decades-oldformula continues to target the places with the most seriousproblems of voting discrimination.